December 16, 2011
Munzer in defense of the Bundle Theory
Stephen R. Munzer (UCLA) has posted A Bundle Theorist Holds On to His Collection of Sticks, Econ Journal Watch, Vol. 8, No. 3, pp. 265-73, September 2011. The abstract:
For nearly a century, most persons who have studied or written about property have conceived of it as a bundle of rights or, colloquially, as a bundle of sticks. In the mid 1990s, several philosophically minded academic lawyers questioned whether property should be thought of as a bundle at all. The impact of their work is reflected in Merrill and Smith (2007), a highly regarded and intellectually challenging casebook used in many U.S. law schools. Merrill and Smith emphasize that property is centrally a right to exclude and is generally held in rem, that is, is good against all the world. They find bundle theories of property defective for various reasons. This essay argues to the contrary. There are solid grounds for holding on to at least some bundle theories, which facilitate the careful analysis of the complexity of property. Moreover, Merrill and Smith’s criticisms are often misguided or ineffective. Lastly, their account gives an overly simple picture of property and views property law as a more unified subject than it actually is.
I haven't developed my own position on whether the bundle theory is the most accurate philosophical account of property, but I use the heck out of it in teaching. I've found that having the class think of property as a bundle of rights that can be arranged in different ways, and then extrapolating that concept over topics such as estates, future interests, co-ownership, and servitudes really helps students wrap their heads around these otherwise esoteric subjects, and provides a good framework for understanding property. I'm glad to see this short philosophical essay by Munzer to assure me that at least I'm not horribly behind the times in teaching about sticks.
December 15, 2011
John Norquist hearts (good) congestion
John Norquist, CEO of the Congress for the New Urbanism, has a thoughtful essay on the always-excellent Cities blog from The Atlantic called The Case for Congestion:
Yogi Berra once said, "nobody goes there anymore. It’s too crowded."
It’s certainly true that people complain about congestion. Yet it’s just as true that popular destinations tend to be crowded. Fifth Avenue in New York, Market Street in San Francisco, Chicago’s Michigan Avenue and Rodeo Drive in Beverly Hills are all congested, but people keep coming back to shop or hang out.
Congestion, in the urban context, is often a symptom of success.
If people enjoy crowded places, it seems a bit strange that federal and state governments continue to wage a war against traffic congestion. Despite many hundreds of billions dollars spent increasing road capacity, they've not yet won; thank God. . . .
After all, congestion is a bit like cholesterol - if you don’t have any, you die. And like cholesterol, there’s a good kind and a bad kind. Congestion measurements should be divided between through-traffic and traffic that includes local origins or destinations, the latter being the "good kind." Travelers who bring commerce to a city add more value than someone just driving through, and any thorough assessment of congestion needs to be balanced with other factors such as retail sales, real estate value and pedestrian volume.
This is an important point, that not all "congestion" is the same. And even with "bad" congestion, adding road capacity doesn't always help.
December 14, 2011
Bad Acronym: The Real Problem With RLUIPA
Some argue that the Religious Land Use and Institutionalized Persons Act (RLUIPA) is an unconstitutional establishment of religion. Others claim that it unduly restricts municipal land use authority. Still others wonder what constitutional authority Congress had to enact such a law. While these are important questions, this blog post argues that RLUIPA suffers from a far more serious defect that has so far been neglected in the legal scholarship: it has a really bad name. I mean, seriously, how do you even pronounce RLUIPA? Is is Ahrr-loopa? Uhrrr-loopa? Rah-loopa? All of these are equally plausible and, frankly, equally awful. For those of us who need to actually pronounce this acronym at least fifty times during a semester, it's a big problem.
So what to do? Some statutes with unwieldy names are simply called by the names of their sponsors. I like the Taft-Hartley Act myself (standing in for the acronymically challenged "Labor-Management Relations Act" or LMRA. "Lmoora?" OK, that's pretty bad too). RLUIPA, unfortunately, had six sponsors, and I'm afraid the Hatch-Daschell-Kennedy-Canady-Nadler-Edwards Act would be a bit of a mouthful. Other statutes are given cool nicknames -- the Comprehensive Environmental Response, Compensation and Liability Act is called "Superfund" (and let's be honest, even "CERCLA" isn't half as bad as RLUIPA.) I'm not sure there's an obvious nickname for RLUIPA though -- unless it's "the Establishment Act."
I invite your thoughts during this grading season about how to handle this pressing problem. One solution, of course, is to just do nothing. Maybe we should just embrace the fact that land use and environmental law are full of terrible acronyms. After all, we're the people who brought you such gems as PUDs, TPPs, CUPs, MURPs, SIDs, MUDs, and SMSAs, among others. On this list, RLUIPA is practically a beauty queen. Please feel free to leave a note with your favorite horrible land use acronym.
Voicu, Been, Weselcouch, & Tschirart on HAMP vs. non-HAMP Loan Modifications
Ioan Voicu (US Gov't--Office of the Comptroller of the Currency), Vicki Been (NYU), Mary Weselcouch (NYU Furman Center), and Andrew Tschirart (US Gov't--OCC) have posted Performance of HAMP versus non-HAMP Loan Modifications--Evidence from New York City. The abstract:
Policymakers have heralded mortgage modifications as a key to addressing the ongoing foreclosure crisis. However, there is a lack of research about whether modifications are successful at helping borrowers stay current on their loans over the long run and what kinds of modifications are most successful. Our empirical strategy employs logit models in a hazard framework to explain how loan, borrower, property, servicer and neighborhood characteristics, along with differences in the types of modifications, affect the likelihood of redefault. The dataset includes both HAMP modifications and proprietary modifications. Our results demonstrate that borrowers who receive HAMP modifications have been considerably more successful in staying current than those receiving non-HAMP modifications.